The fact that the Knesset’s legal department managed to soften the new provision, to the point of making it almost unimplementable, doesn’t change the fact that the motivation was anti-democratic, and the result a stain in the Israeli law book.
By SUSAN HATTIS ROLEFPrime Minister Benjamin Netanyahu addresses the Knesset in Jerusalem(photo credit: AFP PHOTO)
Last Monday Prime Minister Benjamin Netanyahu participated for the first time in the Israeli version of the British prime minister’s Question Time, and seemed to enjoy it.For 100 minutes he answered questions from MKs, which had not been submitted in advance, on matters connected with his positions as prime minister, communications minister, foreign minister and economy and trade minister – three quarters of them from the opposition and the rest from the coalition.As usual Netanyahu managed to avoid answering most of the questions – especially the awkward ones – proving once again that in the donkey’s years since he gave a real interview to the media we haven’t been missing much.On the other hand, he used the opportunity to brag about his government’s achievements, which he recited with gusto toward the end of the show. He enumerated his foreign affairs achievements – almost all of them involving leaders and regimes which are anything but liberal or democratic, and a long list of other items, with greater or lesser accuracy, for most of which credit is due to ministers other than himself.What he didn’t mention was the fact that his government has failed to address the problems of poverty, growing gaps between the rich and poor, the rising cost of living and growing schisms in the Israeli society, while investing a good deal of thought and energy in undermining Israel’s democratic institutions.The day after Netayahu’s “question time” the Knesset passed amendment 44 to Basic Law: the Knesset, which will enable 90 MKs to expel a fellow MK if, after being elected to the Knesset, he or she acts in a manner contrary to two of the three provisions in article 7a of the Basic Law, which deals with the grounds for preventing a list or an individual candidate from participating in elections to the Knesset.The two grounds are incitement to racism and support for an armed struggle by an enemy state or terrorist organization.For over a decade MKs mostly from the right-wing parties have argued that there is a lacuna in the law which enables the Central Elections Committee to prevent lists or individuals running in the elections if they are in breach of one of the provisions of article 7a, subject to a review by the Supreme Court, but which does not enable the Knesset to take action if an MK speaks out and acts in a manner contrary to these provisions.This argument is only partially accurate, since incitement to racism and support of an enemy state or a terrorist organization are dealt with by the penal code, and MKs are not protected from being tried for such offenses by the immunity law. Thus, in September 2014 former MK Said Naf’a from Balad was sent to prison for one year and received an additional suspended sentence of six months for visiting an enemy state, and contacts with a foreign agent. It is true, however, that the courts are require a very high standard of evidence for a conviction.It has been argued by representatives of the Justice Ministry that the appropriate manner in which to deal with the problem is simply to amend the penal code so that it will not be so difficult to get a conviction.
Nevertheless, both the Knesset legal adviser and the attorney general declared the amendment to be constitutional, though both hinted that enabling MKs to try their own colleagues, without proper investigatory and judicial qualifications, and with very strong political motivation, is problematic.The fact that the amendment – initiated by Netanyahu personally, but submitted by the Knesset Constitution, Law and Justice Committee – came in reaction to the visit of the three Balad MKs to the families of dead Palestinian terrorists, to try to assist their efforts to retrieve their bodies from the Israeli authorities, and in the course of the which they stood in silence for a minute in the terrorists’ memory, indicates that the motivation for the amendment was purely political, since while what the three MKs had done was abhorrent to most Israeli Jews, it was not a judicable criminal offense.In fact, the amendment was designed to enable the Knesset to expel Arab MKs, and the addition of the grounds of incitement to racism, which could easily apply to Jewish MKs who systematically incite against the Arabs, is merely a fig-leaf. While it is almost impossible to find 90 MKs to vote in favor of the expulsion of an Arab MK, it is absolutely impossible to find 90 MKs (or even 61 MKs) to vote for the expulsion of a Jewish MK. The fact that back in 1988 Meir Kahane was prevented from running in the elections to the 12th Knesset on grounds of incitement to racism was a unique decision, based on a wide-scale consensus which no longer exists.While it is not unheard of for democratic parliaments to expel a member on grounds of corruption, expelling a member on political grounds (which Turkish President Recep Tayyip Erdogan is expected to start doing in Turkey) is considered fundamentally undemocratic.The fact that the Knesset’s legal department managed to soften the new provision, to the point of making it almost unimplementable, doesn’t change the fact that the motivation was anti-democratic, and the result a stain in the Israeli law book.The writer is a political scientist, and a retired Knesset employee.